Why Current Approaches To Managing eDiscovery Are Failing And How National Discovery Counsel Can Help.

Numerous recent surveys reflect continued and growing dissatisfaction of organizations with their outside law firms and service providers when it comes to electronic discovery. According to the Litigation Outlook 2013 report by The BTI Consulting Group (Wellesley, Mass.) released in August 2012, companies rated law firms’ effectiveness at handling and managing eDiscovery as an average of 5.9 out of a possible 10 points.1

A fundamental question underlying the data and such significant dissatisfaction is “Why?” And the very next question is “Can I do better?”

Efforts usually rely on the wrong people.

Despite the substantial complexities involved in legal discovery today (involving a myriad of sources and types of electronic information that differ greatly from the paper world of old and continuously evolve), most Global 500 companies still tend to get their eDiscovery advice from law firms and other service providers that have not adapted to the electronic world. Indeed, many organizations continue to get widely varying advice from different firms without any overarching consistency or strategy. And certainly without any forward thinking as to cost and risk reductions.

In truth, the difference between today’s electronic world of records and information versus the paper world of yesteryear is as different as the contrast between the horse and buggy days and the advent of the automobile. Put yourself in the year 1915 and ask this: Would you ask your trusty and reliable stable hand to please fix your fleet of Ford Model Ts, reasoning that it is just about transportation after all?

Keep in mind that being tech-savvy in today’s electronic information world is not enough. Whether the technology company or other service provider is a Fortune 100 company or a garage start-up, ask about the defensibility of process. How will it stand up in court? How can it be explained? Has it been vetted by people who understand the legal discovery system and judicial expectations? Are you getting straight talk or another sales pitch? Can this person give you unbiased advice regarding the right technology and process solutions for your organization?

In the end, who is handling your multi-million dollar efforts to manage electronic discovery each year? Who is working to reduce your risks and costs? Equally important, who will stand side by side with you if and when “it” ever hits the fan, and do they have the mettle to guide you through adversity?

Efforts are usually tactical and not strategic.

It should not be surprising that many of the “solution” providers in the eDiscovery space have simply been trying to find ways to extend their existing ways of doing business. Whether it is a technology or consulting company that now says it “does eDiscovery” or a law firm that has bought expensive software and says it will reduce costs by using the technology with contract attorneys, make sure you look behind the curtain. What strategic options are being offered to change the way in which your discovery is managed? How are your service providers working with you to find ways to meet legal obligations while reducing the now ballooned legal budget by 10, 15, or 20%? How have they adapted to a world of judicially mandated “cooperation” to seize advantages for your organization while protecting privileged and confidential information? Have they suggested ways in which privilege logs can be eliminated or done in a more efficient way? Have they employed technology and process in cases to reduce the volume of documents subject to costly human review? Have they developed systemic ways to leverage and repeat processes across cases to reduce risks and costs? Have they suggested ways in which information can be managed within the enterprise to align better with any future discovery needs? Have they suggested including provisions in commercial contracts to prospectively limit discovery obligations and costs in the event of disputes? These are just a handful of the questions you should be asking.

At the same time, do not look at reducing billable hourly rates as your salvation. That is tactical and limited. You need to think about changes in process that yield far greater cost savings. You need to explore the deployment of technology solutions that will have a return on the investment far beyond your current discovery spending. You need to think about reasonable alternative fee strategies for service providers that reward efficiencies and success instead of presence and the ability to turn in a timesheet or calculate a gigabyte. Money well spent on strategy can lead to much greater savings than tactical approaches alone.

Efforts to change the status quo take daring and require fortitude.

Changing the current paradigm of discovery response in most organizations is undoubtedly disruptive to many. Using strategic national discovery counsel to better manage the costs and risks across the litigation portfolio challenges the large law and consulting firms that have developed sizable infrastructures over time to handle all aspects of the litigation process. Employing computer-assisted culling and review protocols that may lead to substantial cost savings endanger the traditional review providers who made their money based on human reviews of documents. Expect push back. Expect people to say that you cannot eliminate various levels of review, citing the dangers of privilege waivers, data mining by the requesting party's attorneys, potential exposure for privacy-related claims, and the like. Many companies back down in light of the push back.

Look carefully at who is raising the objection and the basis for it. And don’t just stop with an examination of the objection. Just because an objection is valid on one level does not mean that a more feasible alternative is not available. Challenge the boundaries and assumptions by asking what is possible with technology, agreements with opposing counsel, or relief ordered by the court. While always keeping an eye on meeting all legal obligations, be daring in challenging the status quo.

How engaging national discovery counsel can help.

Engaging national discovery counsel reduces the costs, pain, and risks associated with discovery across an organization’s litigation/regulatory portfolio. By getting to know our clients – their business, their issues and concerns, and their approach to litigation – Redgrave LLP becomes a dependable, knowledgeable, and trusted advocate who can streamline and ease the burdens of our clients’ processes internally, as well as speak externally on behalf of our clients in a way that is authoritative, consistent, credible, and persuasive whether before a judge, the government, or in a meet and confer session with opposing counsel.

In the role of national discovery counsel, Redgrave LLP attorneys, advisors, analysts, and project managers work collaboratively with our clients and merits counsel for all cases, certain types of cases, or for particular issues that arise across cases. We examine processes from preservation through production to identify areas of risk and inefficiency. We look for ways in which information can be leveraged efficiently with the client and among law firms and other service providers. We identify opportunities to develop and use “best in class” template language and documents to improve consistency of approach in affirmative and defensive discovery. We evaluate ways to reduce the scope of preservation, collection, and production burden. And we evaluate ways to leverage technologies and processes to efficiently review high volumes of information. We also appear as necessary in court and other proceedings to advocate and defend our clients’ processes and discovery positions.

In short, we strive to make litigation less costly, less painful, and less risky for our clients. We look to eliminate or reduce the headaches and uncertainty that come with litigation by taking practical, reasonable, consistent, and defensible approaches to discovery. In doing this, our clients avoid paying excessive costs by avoiding exorbitance, duplication, surprises, and disputes associated with discovery. We also help our clients avoid risks by taking consistent positions and approaches across matters and jurisdictions. As national discovery counsel, focus on all aspects of discovery thereby positioning our clients where they can reduce the risk of having a matter dismantled by discovery-related issues and can focus on the true merits at issue.

1 See www.bticonsulting.com. In addition, it was recently reported that eDiscovery Solutions Group (eDSG), conducted a blind survey of the General Counsel from the Global 250 on various aspects of eDiscovery. Based upon a 51% participation rate, eDSG reported:

Top Concerns Over the Next 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 63%

Top Frustrations Over the Past 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 75%

Top Pet Peeves Over the Past 12 Months: Outside Counsel's refusal to take responsibility on eDiscovery = 50%